United States v. Angiolillo

UNITED STATES OF AMERICA, Appellee,v.TRACY ANGIOLILLO, Defendant, Appellant.

APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND Hon. Mary M. Lisi, U.S. District Judge

Julia
Pamela Heit on brief for appellant.

Stephen G. Dambruch, Acting United States Attorney, and
Donald C. Lockhart, Assistant United States Attorney, on
brief for appellee.

Before
Lynch, Selya and Thompson, Circuit Judges.

SELYA,
Circuit Judge.

Lurking
in the penumbra of this case is an unsettled question about
the scope of a waiver-of-appeal provision. Although we
identify that question, we assume, without deciding, that the
waiver is inapplicable in this instance. With that assumption
in place, we reach the merits of the appeal and affirm the
judgment below.

I.
BACKGROUND

We draw
the relevant facts from the unchallenged portions of the
presentence investigation reports and the record of the
resentencing hearing. See United States v. Vargas,
560 F.3d 45, 47 (1st Cir. 2009); United States v.
Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

On
February 22, 2007, defendant-appellant Tracy Angiolillo met a
man (who turned out to be an undercover agent) in a hotel
parking lot in Pawtucket, Rhode Island. During the encounter,
the appellant gave the undercover agent $100, 1.15 grams of
cocaine base (crack cocaine), and .46 grams of heroin in
exchange for two semi-automatic firearms. After the swap was
completed, the authorities arrested the appellant and read
him his Miranda rights. See Miranda v.
Arizona, 384 U.S. 436, 444-45 (1966). He admitted
trading cash and controlled substances for the guns.

In due
course, the government filed an information charging the
appellant with being a felon in possession of two firearms
(count 1), see 18 U.S.C. § 922(g)(1),
distribution of cocaine base (count 2), see 21
U.S.C. § 841(a)(1), and distribution of heroin (count
3), see id. At around the same time, the government
filed a supplemental information alleging that the appellant
fell within the ambit of the Armed Career Criminal Act
(ACCA), see 18 U.S.C. § 924(e), because he had
three prior convictions for violent felonies or serious drug
offenses. The ACCA, where applicable, requires a mandatory
minimum sentence of 15 years for violations of section
922(g).

The
appellant pleaded guilty to all three counts pursuant to a
written plea agreement (the Agreement). The Agreement
included a provision waiving his right to appeal as long as
the court sentenced him within the applicable guideline
sentencing range (GSR).

The
probation office prepared a presentence investigation report
(PSI Report), which confirmed that the ACCA applied to the
appellant's case. Taking that as a given and making a
number of other adjustments (including a career offender
enhancement, see USSG §4B1.1), the PSI Report
calculated the appellant's GSR to be 188-235 months. The
district court accepted this calculation and sentenced the
appellant to three concurrent bottom-of-the-range 188-month
terms of immurement. No appeal was taken.

While
the appellant was serving his prison sentence, he twice moved
for a reduction of his sentence (once in 2013 and again in
2014).[1] Both motions were denied. The appellant
then took another tack: on August 4, 2015, he moved to vacate
his sentence under 28 U.S.C. § 2255. This effort was
premised on Johnson II, in which the Supreme Court
held that the definition of a violent felony in the residual
clause of the ACCA was so vague as to work an
unconstitutional denial of due process. See Johnson v.
United States (Johnson II), 135 S.Ct. 2552,
2557 (2015).[2] While the appellant's section 2255
motion was pending, the Supreme Court made pellucid that its
decision in Johnson II was substantive and, thus,
retroactive. See Welch v. United States, 136 S.Ct.
1257, 1265 (2016). At that juncture, the government conceded
that the appellant could no longer be viewed as subject to
the ACCA, and the district court, without objection, vacated
the appellant's sentence and ordered resentencing.

In
anticipation of resentencing, the probation office prepared a
new version of the PSI Report. This version concluded that
the appellant's GSR, calculated without reference to the
ACCA but still including the career offender enhancement, was
151-188 months. The district court thereupon convened a
...

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